setts, Connecticut, New Jersey, North Carolina, South Carolina, no, 5; Georgia, divided.

Mr. GOUVERNEUR MORRIS moved to insert, after "office," "except offices in the army or navy; but, in that case, their offices shall be vacated."

Mr. BROOM seconds him.

Mr. RANDOLPH had been, and should continue, uniformly opposed to the striking out of the clause, as opening a door for influence and corruption. No arguments had made any impression on him but those which related to the case of war, and a coëxisting incapacity of the fittest commanders to be employed. He admitted great weight in these, and would agree to the exception proposed by Mr. Gouverneur Morris.

Mr. BUTLER and Mr. PINCKNEY urged a general postponement of article 6, sect. 9, till it should be seen what powers would be vested in the Senate, when it would be more easy to judge of the expediency of allowing the officers of state to be chosen out of that body.

A general postponement was agreed to, nem. con.207

Article 6, sect. 10, was then taken up, "that members be paid by their respective states."

Mr. ELLSWORTH said that, in reflecting on this subject, he had been satisfied that too much dependence on the states would be produced by this mode of payment. He moved to strike it out, and insert, "that they should be paid out of the treasury of the United States an allowance not exceeding dollars per day, or the present value thereof."

Mr. GOUVERNEUR MORRIS remarked, that, if the members were to be paid by the states, it would throw an unequal burden on the distant states, which would be unjust, as the legislature was to be a national assembly. He moved that the payment be out of the national treasury, leaving the quantum to the discretion of the national legislature. There could be no reason to fear that they would overpay themselves.

Mr. BUTLER contended for payment by the states, particularly in the case of the Senate, who will be so long out of their respective states that they will lose sight of their constituents, unless dependent on them for their support.

Mr. LANGDON was against payment by the states. There would be some difficulty in fixing the sum, but it would be unjust to oblige the distant states to bear the expense of their members, in travelling to and from the seat of government.

Mr. MADISON. If the House of Representatives is to be chosen biennially, and the Senate to be constantly dependent on the legislatures, which are chosen annually, he could not see any chance for that stability in the general government, the want of which was a principal evil in the state governments. His fear was, that the organzation of the government, supposing the Senate to be really inde54

VOL. V.

pendent for six years, would not effect our purpose. It was nothing more than a combination of the peculiarities of two of the state governments, which, separately, had been found insufficient. The Senate was formed on the model of that of Maryland; the revisionary check, on that of New York. What the effect of a union of these provisions might be, could not be foreseen. The enlargement of the sphere of the government was, indeed, a circumstance which he thought would be favorable, as he had, on several occasions, undertaken to show. He was, however, for fixing, at least, two extremes, not to be exceeded by the national legislature, in the payment of themselves.

Mr. GERRY. There are difficulties on both sides. The observation of Mr. Butler has weight in it. On the other side, the state legislatures may turn out the senators, by reducing their salaries. Such things have been practised.

Col. MASON. It has not yet been noticed that the clause, as it now stands, makes the House of Representatives also dependent on the state legislatures, so that both Houses will be made the instruments of the politics of the states, whatever they may be.

Mr. BROOM could see no danger in trusting the general legislature with the payment of themselves. The state legislatures had this power, and no complaint had been made of it.

Mr. SHERMAN was not afraid that the legislature would make their own wages too high, but too low, so that men ever so fit could not serve, unless they were, at the same time, rich. He thought the best plan would be, to fix a moderate allowance, to be paid out of the national treasury, and let the states make such additions as they might judge fit. He moved that five dollars per day be the sum, any further emoluments to be added by the states.

Mr. CARROLL had been much surprised at seeing this clause in the report. The dependence of both Houses on the state legislatures is complete, especially as the members of the former are eligible to state offices. The states can now say, "If you do not comply with our wishes, we will starve you; if you do, we will reward you." The new government, in this form, was nothing more than a second edition of Congress, in two volumes instead of one, and, perhaps, with very few amendments.

Mr. DICKINSON took it for granted that all were convinced of the necessity of making the general government independent of the prejudices, passions, and improper views, of the state legislatures. The contrary of this was effected by the section, as it stands. On the other hand, there were objections against taking a permanent standard, as wheat, which had been suggested on a former occasion, as well as against leaving the matter to the pleasure of the national legislature. He proposed that an act should be passed, every twelve years, by the national legislature, settling the quantum of their wages. If the general government should be left dependent on the state legislatures, it would be happy for us if we had never met in this

room.

Mr. ELLSWORTH was not unwilling himself to trust the legislature with authority to regulate their own wages, but well knew that an unlimited discretion for that purpose would produce strong, though, perhaps, not insuperable objections. He thought changes in the value of money provided for by his motion in the words "or the present value thereof."

Mr. L. MARTIN. As the Senate is to represent the states, the members of it ought to be paid by the states.

Mr. CARROLL. The Senate was to represent and manage the affairs of the whole, and not to be the advocates of state interests. They ought, then, not to be dependent on, nor paid by, the states. ... On the question for paying the members of the legislature out of the national treasury,

New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, ay, 9; Massachusetts, South Carolina, no, 2.

Mr. ELLSWORTH moved that the pay be fixed at five dollars, or the present value thereof, per day, during their attendance, and for every thirty miles in travelling to and from Congress.

Mr. STRONG preferred four dollars, leaving the states at liberty to make additions.

On the question for fixing the pay at five dollars,

Connecticut, Virginia, ay, 2; New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, Georgia, no, 9.

Mr. DICKINSON proposed that the wages of the members of both Houses should be required to be the same.

Mr. BROOM seconded him.

Mr. GORHAM. This would be unreasonable.

The Senate will

be detained longer from home, will be obliged to remove their families, and, in time of war, perhaps, to sit constantly. Their allowance should certainly be higher. The members of the senates in the states are allowed more than those of the other house.

Mr. DICKINSON withdrew his motion.

It was moved and agreed to amend the section, by adding, "to be ascertained by law."

The section, (article 6, sect. 10,) as amended, was then agreed to, nem. con.'

208

Adjourned.

In Convention.

WEDNESDAY, August 15.

Article 6, sect. 11, was agreed to, nem. con.

Article 6, sect. 12, was then taken up.

Mr. STRONG moved to amend the article, so as to read,

"Each House shall possess the right of originating all bills, except bills for raising money for the purposes of revenue, or for appropriating the same, and for fixing the salaries of the officers of the government, which shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as in other cases."

a

Col. MASON seconds the motion. He was extremely earnest to take this power from the Senate, who, he said, could already sell the whole country by means of treaties.

Mr. GORHAM urged the amendment as of great importance. The Senate will first acquire the habit of preparing money bills, and then the practice will grow into an exclusive right of preparing them.

Mr. GOUVERNEUR MORRIS opposed it, as unnecessary and inconvenient.

Mr. WILLIAMSON. Some think this restriction on the Senate essential to liberty; others think it of no importance. Why should not the former be indulged? He was for an efficient and stable government; but many would not strengthen the Senate, if not restricted in the case of money bills. The friends of the Senate, would, therefore, lose more than they would gain, by refusing to gratify the other side. He moved to postpone the subject, till the powers of the Senate should be gone over.

Mr. RUTLEDGE seconds the motion.

Mr. MERCER should hereafter be against returning to a reconsideration of this section. He contended (alluding to Mr. Mason's observations) that the Senate ought not to have the power of treaties. This power belonged to the executive department; adding, that treaties would not be final, so as to alter the laws of the land, till ratified by legislative authority. This was the case of treaties in Great Britain, particularly the late treaty of commerce with France.

Col. MASON did not say that a treaty would repeal a law; but that the Senate, by means of treaties, might alienate territory, &c., without legislative sanction. The cessions of the British islands in the West Indies, by treaty alone, were an example. If Spain should possess herself of Georgia, therefore, the Senate might by treaty dismember the Union. He wished the motion to be decided now, that the friends of it might know how to conduct themselves.

On the question for postponing sect. 12, it passed in the affirmative.

New Hampshire, Massachusetts, Virginia, North Carolina, South Carolina, Georgia, ay, 6; Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, no, 5.

Mr. MADISON moved the following amendment of article 6, sect. 13:

"Every bill which shall have passed the two Houses shall, before it becomes a law, be severally presented to the President of the United States, and to the judges of the Supreme Court, for the revision of each. If, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it; but if, upon such revision, it shall appear improper to either, or both, to be passed into a law, it shall be returned, with the objections against it, to that House in which it shall have originated, who shall enter the objections at large on their Journal, and proceed to reconsider the bill; but if, after such reconsideration, two thirds of that House, when either the President or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pass it, it shall, together with the objections, be sent to the other House; by which it shall likewise be reconsidered, and, if approved by two thirds, or three fourths of the other House, as the case may be, it shall become a law."

Mr. WILSON seconds the motion.

Mr. PINCKNEY opposed the interference of the judges in the legislative business: it will involve them in parties, and give a previous tincture to their opinions.

Mr. MERCER heartily approved the motion. It is an axiom that the judiciary ought to be separate from the legislative; but equally so, that it ought to be independent of that department. The true policy of the axiom is, that legislative usurpation and oppression may be obviated. He disapproved of the doctrine, that the judges, as expositors of the Constitution, should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontrollable.

Mr. GERRY. This motion comes to the same thing with what has been already negatived.

On the question on the motion of Mr. Madison,—

Delaware, Maryland, Virginia, ay, 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, North Carolina, South Carolina, Georgia, no, 8.209 Mr. GOUVERNEUR MORRIS regretted that something like the proposed check could not be agreed to. He dwelt on the importance of public credit, and the difficulty of supporting it without some strong barrier against the instability of legislative assemblies. He suggested the idea of requiring three fourths of each House to repeal laws where the President should not concur. He had no great reliance on the revisionary power, as the executive was now to be constituted, (elected by Congress.) The legislature will contrive to soften down the President. He recited the history of paper emissions, and the perseverance of the legislative assemblies in repeating them, with all the distressing effects of such measures before their eyes. Were the national legislature formed, and a war was now to break out, this ruinous expedient would be again resorted to, if not guarded against The requiring three fourths to repeal would, though not a complete remedy, prevent the hasty passage of laws, and the frequency of those repeals which destroy faith in the public, and which are among our greatest calamities.

Mr. DICKINSON was strongly impressed with the remark of Mr. Mercer, as to the power of the judges to set aside the law. He thought no such power ought to exist. He was, at the same time, at a loss what expedient to substitute. The justiciary of Arragon, he observed, became by degrees the lawgiver.

Mr. GOUVERNEUR MORRIS suggested the expedient of an absolute negative in the executive. He could not agree that the judiciary, which was part of the executive, should be bound to say, that a direct violation of the Constitution was law. A control over the legislature might have its inconveniences; but view the danger on the other side. The most virtuous citizens will often, as members of a legislative body, concur in measures which afterwards, in their private capacity, they will be ashamed of. Encroachments of the popular branch of the government ought to be guarded against. The